Cirella v. Department of the Treasury ( 2008 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3218
PHYLLIS ANN CIRELLA,
Petitioner,
v.
DEPARTMENT OF THE TREASURY,
Respondent.
Phyllis Ann Cirella, of Medford, Massachusetts, pro se.
Michael N. O’Connell, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for respondent. With
him on the brief were Gregory G. Katsas, Acting Assistant Attorney General, Jeanne E.
Davidson, Director, and Patricia M. McCarthy, Assistant Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3218
PHYLLIS ANN CIRELLA,
Petitioner,
v.
DEPARTMENT OF THE TREASURY,
Respondent.
Petition for review of the Merit Systems Protection Board in PH0752070579-I-1.
__________________________
DECIDED: October 10, 2008
__________________________
Before RADER, PLAGER, and GAJARSA, Circuit Judges.
PER CURIAM.
Phyllis Ann Cirella was removed from her position as a bankruptcy specialist with
the Internal Revenue Service. After her removal, Ms. Cirella chose to file a grievance
and pursue arbitration as provided by her union contract rather than appeal her removal
to the Merit Systems Protection Board (Board). Seven months after the arbitrator
upheld the agency’s action, and twenty-six months after her removal, she filed an
appeal with the Board seeking review of both the agency’s removal action and the
arbitration decision.
The administrative judge dismissed both aspects of the appeal. Ms. Cirella then
filed a petition for review by the full board of the administrative judge’s initial decision
dismissing the appeal from the agency’s removal action. She also filed a request for
review by the full Board of the arbitrator’s decision. 1 The Board denied the petition for
review of the administrative judge’s initial decision and found no error in the arbitrator’s
affirmance of the removal. Cirella v. Dep’t of the Treasury, 108 M.S.P.R. 474 (2008).
Ms. Cirella timely appealed here. We affirm.
Our scope of review of Board decisions is limited by statute. We must affirm the
Board’s decision unless it was “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; obtained without procedures required by law, rule,
or regulation having been followed; or unsupported by substantial evidence.” 5 U.S.C.
§ 7703(c).
In her brief filed with the court, Ms. Cirella states that she is requesting de novo
review of her case. As this is an appellate court, we have no authority to conduct such
a review, and therefore we cannot consider Ms. Cirella’s many fact-based arguments.
With regard to Ms. Cirella’s request for direct review by the Board of the agency’s
removal decision, the Board correctly held that that avenue is no longer available to her.
An employee who is covered by a collective bargaining agreement may challenge an
adverse action such as a removal either by filing an appeal with the Board or by filing a
grievance under the negotiated grievance procedure, but not both. 5 U.S.C.
1
The Board has held that an arbitration decision that is before the Board for
review is properly reviewed by the full Board, not an administrative judge. See Brent v.
Dep’t of Justice, 100 M.S.P.R. 586, 589 (2005). In Board terminology, a petitioner
submits to the full Board a “request for review” of an arbitrator’s decision, whereas she
submits a “petition for review” of an administrative judge’s initial decision.
2008-3218 2
§ 7121(e)(1); Rodriguez v. Merit Sys. Prot. Bd., 804 F.2d 673, 675 (Fed. Cir. 1986).
Once Ms. Cirella elected to pursue arbitration, she waived her right to appeal her
removal to the Board.
Although we have jurisdiction to review directly an arbitrator’s final decision
regarding an adverse action, 5 U.S.C. § 7121(f), Ms. Cirella did not appeal the
arbitration decision to this court; that decision, therefore, is not before us for review.
Ms. Cirella did file a request for review of the arbitrator’s decision with the Board. While
ordinarily the Board does not have jurisdiction to review an arbitrator’s decision, there is
an exception. Under 5 U.S.C. § 7121(d), the Board has jurisdiction to review an
arbitration decision when “the subject matter of the grievance is one over which the
Board has jurisdiction, the appellant has alleged discrimination as stated in 5 U.S.C.
§ 2302(b)(1) in connection with the underlying action, and a final decision has been
issued.” De Bow v. Dep’t of the Air Force, 97 M.S.P.R. 5, 7-8 (2004); see also Jones v.
Dep’t of the Navy, 898 F.2d 133, 135 (Fed. Cir. 1990). The Board gives substantial
deference to arbitrators and will “modify or set aside an arbitration decision only where
the arbitrator has erred as a matter of law in interpreting civil service law, rule, or
regulation. Absent legal error, the Board cannot substitute its conclusions for those of
the arbitrator, even if it would disagree with the arbitrator’s decision.” De Bow, 97
M.S.P.R. at 8 (internal citation omitted).
After determining that the jurisdictional requirements had been met, the Board
reviewed the arbitrator’s decision and concluded that there was no error by the
arbitrator in sustaining the charge against Ms. Cirella or in determining the appropriate
2008-3218 3
penalty. Applying our deferential standard of review, we see no error in the Board’s
affirmance of the arbitrator’s decision sustaining Ms. Cirella’s removal. 2
COSTS
Each party shall bear its own costs.
2
The Board concluded that, though sufficiently alleged for jurisdictional
purposes, Ms. Cirella failed to prove her discrimination claim. That issue is not before
us for review.
2008-3218 4